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Vol. II.)

MURDOCK V. CITY OF MEMPHIS.

(No. 3.

court can mean no more than that it shall transfer the case to the supreme court, and with it the record of the proceedings in the court below. This is the effect of the writ and its function and purpose. When the court comes to consider the case, it may be limited by the nature of the writ; but what it shall review, and what it shall not, must depend upon the jurisdietion of the court in that class of cases as fixed by the law governing that jurisdiction.

So the regulations here spoken of are manifestly the rules under which the writ is issued, served, and returned ; the notice to be given to the adverse party, and time fixed for appearance, argument, &c. Another important effect of the writ and of the regulations governing it is that when accompanied by a proper bond, given and approved within the prescribed time, it operates as a supersedeas to further proceedings in the inferior court. The word manner also much more appropriately expresses the general mode of proceeding with the case, after the writ has been allowed, the means by which the exigency of the writ is enforced, -as by rule on the clerk, or mandamus to the court, — and the progress of the case

in the appellate court; as filing the record, docketing the case, time of hearing, order of the argument, and such other matters as are merely incident to final decision by the court. In short, the whole phrase is one eminently appropriate to the expression of the idea that these cases, though coming from state instead of federal tribunals, shall be conducted in their progress through the court, in the matter of the general course of procedure, by the same rules of practice that prevail in cases brought under writs of error to the courts of the United States.

This is a different thing, however, from laying down rules of decision, or enacting the fundamental principles on which the court must decide this class of cases. It differs widely from an attempt to say that the court in coming to a judgment must consider this matter and disregard that. It is by no means the language in which a legislative body would undertake to establish the principles on which a court of last resort must form its judgment.

There is an instance of the use of very similar language by Congress in reference to the removal of causes into this court for review, which has uniformly received the construction which we now place upon this.

By the judiciary act of 1789, there was no appeal, in the judicial sense of that word, to this court in any case. Decrees in suits in equity and admiralty were brought up by writ of error only, until the act of 1803; and as this writ could not bring up a case to be tried on its controverted questions of fact, the 19th section of the act of 1789 required the inferior courts to make a finding of facts which should be accepted as true by the appellate court. But by the act of March 3, 1803, 2 U. S. Statutes, 244, these cases were to be brought to this court by appeal, and to give this appeal full effect the 19th section of the act of 1789 was repealed, and upon such appeal the court below was directed to send to this court all the pleadings, depositions, testimony, and proceedings. In this manner the court obtained that full possession and control of the case which the nature of an appeal implies. And it is worthy of observation that Congress did not rely upon the mere legal operation of the word appeal to effect this, but provided in express terms the means necessary to insure this object.

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Vol. II.]

MURDOCK v. City OF MEMPHIS.

]No. 3.

But to avoid the necessity of many words as to the mode in which the case should be brought to this court and conducted when here, it was enacted that such appeals shall be subject to the same rules, regulations, and restrictions as are prescribed in law in case of writs of error.” Here is language quite as strong as that we have had under consideration, and strikingly similar both in its purport and in the purpose to be served by it. Yet no one ever supposed that when the court came to consider the judgment which it should render on such an appeal it was to be governed by the principles applicable to writs of error at common law. It was never thought for a moment, notwithstanding the use of the word “restrictions,” that the court was limited to questions of law apparent on the record ; but the uniform course has been to consider it as a case to be tried de novo on all the considerations of law and of fact applicable to it. There are many decisions of this court showing that these words have been held to apply alone to the course of procedure, to matters of mere practice, and not at all affording a rule for decision of the case on its merits in the conference room. Villabolos v. United States, 6 How. 81; Castro v. United States, 3 Wall. 46; Mussina v. Cava808, 6 Wall. 355.

There is, therefore, nothing in the language of the act, as far as we have criticised it, which in express terms defines the extent of the reëxamination which this court shall give to such cases.

But we have not yet considered the most important part of the statute, namely, that which declares that it is only upon the existence of certain questions in the case that this court can entertain jurisdiction at all. Nor is the mere existence of such a question in the case sufficient to give jurisdiction, – the question must have been decided in the state court. Nor is it sufficient that such a question was raised and was decided. It must have been decided in a certain way, that is, against the right set up under the Constitution, laws, treaties, or authority of the United States. The federal question may have been erroneously decided. It may be quite apparent to this court that a wrong construction has been given to the federal law; but if the right claimed under it by plaintiff in error has been conceded to him, this court cannot entertain jurisdiction of the case, 80 very careful is the statute, both of 1789 and of 1867, to narrow, to limit, and define the jurisdiction which this court exercises over the judgments of the state courts. Is it consistent with this extreme caution to suppose that Congress intended, when those cases came here, that this court should not only examine those questions, but all others found in the record ? — questions of common law, of state statutes, of controverted facts, and conflicting evidence. Or is it the more reasonable inference that Congress intended that the case should be brought here that those questions might be decided, and finally decided, by the court established by the Constitution of the Union, and the court which has always been supposed to be not only the most appropriate but the only proper tribunal for their final decision ? No such reason nor any necessity exists for the decision by this court of other questions in those cases. The jurisdiction has been exercised for nearly a century without serious inconvenience to the due administration of justice. The state courts are the appropriate tribunals, as this court has repeatedly held, for the decision of questions

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Vol. II.)

MURDOCK v. CITY OF MEMPHIS.

(No. 3.

arising under their local law, whether statutory or otherwise. And it is not lightly to be presumed that Congress acted upon a principle which implies a distrust of their integrity or of their ability to construe those laws correctly.

Let us look for a moment into the effect of the proposition contended for upon the cases as they come up for consideration in the conference room. If it is found that no such question is raised or decided in the court below, then all will concede that it must be dismissed for want of jurisdiction. But if it is found that the federal question was raised and was decided against the plaintiff in error, then the first duty of the court obviously is to determine whether it was correctly decided by the state court. Let us suppose that we find that the court below was right in its decision on that question. What, then, are we to do? Was it the intention of Congress to say that while you can only bring the case here on account of this question, yet when it is here, though it may turn out that the plaintiff in error was wrong on that question, and the judgment of the court below was right, though he has wrongfully dragged the defendant into this court by the allegation of an error which did not exist, and without which the case could not rightfully be here, he can still insist on an inquiry into all the other matters which were litigated in the case ? This is neither reasonable nor just.

In such case both the nature of the jurisdiction conferred and the nature and fitness of things demand that, no error being found in the matter which authorized the reëxamination, the judgment of the state court should be affirmed, and the case remitted to that court for its further enforcement.

The whole argument we are combating, however, goes upon the assumption that when it is found that the record shows that one of the questions mentioned has been decided against the claim of the plaintiff in error, this court has jurisdiction, and that jurisdiction extends to the whole case. If it extends to the whole case, then the court must reëxamine the whole case; and if it reëxamines, it must decide the whole case. It is difficult to escape the logic of the argument if the first premise be conceded. But it is here the error lies. We are of opinion that upon a fair construction of the whole language of the section the jurisdiction conferred is limited to the decision of the questions mentioned in the statute, and, as a necessary consequence of this, to the exercise of such powers as may be necessary to cause the judgment in that decision to be respected.

We will now advert to one or two considerations apart from the mere language of the statute, which seem to us to give additional force to this conclusion,

It has been many times decided by this court, on motions to dismiss this class of cases for want of jurisdiction, that if it appears from the record that the plaintiff in error raised and presented to the court by pleadings, prayer for instruction, or other appropriate method, one of the questions specified in the statute, and the court ruled against him, the jurisdiction of this court attached, and we must hear the case on its merits. Rector v. Ashly, 6 Wall. 143; Bridge Proprietors v. Hoboken Co. 1 Wall. 116 ; Furman v. Nichol, 8 Wall. 44; Armstrong v. Treasurer of Athens

Vol. II.)

MURDOCK v. CITY OF MEMPHIS.

(No. 3.

Co. 16 Peters, 281; "Crowell v. Randell, 10 Peters, 368. Heretofore these merits have been held to be to determine whether the propositions of law involved in the specific federal question were rightly decided, and if not, did the case of plaintiff in error, on the pleadings and evidence, come within the principle ruled by this court. This has always been held to be the exercise of the jurisdiction and reëxamination of the case provided by the statute. But if when we once get jurisdiction, everything in the case is open to reëxamination, it follows that every case tried in any state court, from that of a justice of the peace to the highest court of the state, may be brought to this court for final decision on all the points involved in it.

That this is no exaggeration let us look a moment.

Suppose a party is sued before a justice of the peace for assault and battery. He pleads that he was a deputy marshal of the United States, and in serving a warrant of arrest on plaintiff he gently laid his hands on him and used no more force than was necessary. He also pleads the general issue. We will suppose that to the special plea some response is made which finally leads to a decision against the defendant on that plea. And judgment is rendered against him on the general issue also. He never was a deputy marshal. He never had a writ from a United States court; but he insists on that plea through all the courts up to this, and when he gets here the record shows a federal question decided against him, and this court must reëxamine the whole case, though there was not a particle of truth in his plea, and it was a mere device to get the case into this court. Very many cases are brought here now of that character. Also, cases where the moment the federal question is stated by counsel we all know that there is nothing in it. This has become such a burden and abuse that we either refuse to hear, or hear only one side

many such, and stop the argument, and have been compelled to adopt a rule that when a motion is made to dismiss it shall only be heard on printed argument. If the temptation to do this is so strong under the rule of this court for over eighty years to hear only the federal question, what are we to expect when, by merely raising one of those questions in any case, the party who does it can bring it here for decision on all the . matters of law and fact involved in it? It is to be remembered that there is not even a limitation as to the value in controversy in writs to the state courts as there is to the circuit courts ; and it follows that there is no conceivable case so insignificant in amount or unimportant in principle that a perverse and obstinate man may not bring it to this court by the aid of a sagacious lawyer raising a federal question in the record, — a point which he may be wholly unable to support by the facts, or which he may well know will be decided against him the moment it is stated. But he obtains his object, if this court, when the case is once open to reëxamination on account of that question, must decide all the others that are to be found in the record.

It is impossible to believe that Congress intended this result, and equally impossible that they did not see that it would follow if they intended to open the cases that are brought here under this section for reëxamination on all the points involved in them and necessary to a final judgment on the merits.

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Vol. II.)

MORDOCK v. City Of MEMPHIS.

[No. 3.

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The 25th section of the act of 1789 has been the subject of innumerable decisions, some of which are to be found in almost every volume of the reports from that year down to the present. These form a system of appellate jurisprudence relating to the exercise of the appellate power of this court over the courts of the states. That system has been based upon the fundamental principle that this jurisdiction was limited to the correction of errors relating solely to federal law. And though it may be argued with some plausibility that the reason of this is to be found in the restrictive clause of the act of 1789, which is omitted in the act of 1867, yet an examination of the cases will show that it rested quite as much on the conviction of this court that without that clause, and on general principles, the jurisdiction extended no further. It requires a very bold reach of thought, and a readiness to impute to Congress a radical and hazardous change of a policy vital in its essential nature to the independence of the state courts, to believe that that body contemplated or intended what is claimed, by the mere omission of a clause in the substituted statute, which may well be held to have been superfluous, or nearly so, in the old one.

Another consideration, not without weight in seeking after the intention of Congress, is found in the fact, that where that body has clearly shown an intention to bring the whole of a case which arises under the constitutional provision, as to its subject matter, under the jurisdiction of a federal court, it has conferred its cognizance on federal courts of original jurisdiction and not on the supreme court.

It is the same clause and the same language which declares in the Constitution that the judicial power shall extend to cases arising under the Constitution, laws, and treaties of the United States and to cases of admiralty and maritime jurisdiction. In this same act of 1789 the jurisdiction in admiralty and maritime cases is conferred on the district courts of the United States, and is made exclusive. Congress has in like manner conferred upon the same court exclusive original jurisdiction in all cases of bankruptcy.

Upon the circuit court it has conferred jurisdiction with exclusive reference to matters of federal law, without regard to citizenship, either originally or by removal from the state courts in cases of conflicting titles to land under grants from different states : 1 U. S. Statutes, 89. In cases arising under the patent laws : 16 U. S. S. 206, 215. In suits against banking associations organized under the laws of the United States: 13 U. S. S. 116. In suits against individuals on account of acts done under the revenue laws of the United States: Act of March 2, 1833, 4 U. S. S. 632, and July 13, 1866, 14 U. S. S. 176. In suits for damages for depriving, under color of state laws, any person of rights, privileges, or immunities secured to him by the Constitution or laws of the United States : Act of May 31, 1870, 16 U. S. S. 114; April 20, 1871, 17 U. S. S. 13. See also for removal of cases of similar character from state courts, act of March 3, 1863, 12 U. S. S. 756 ; April 9, 1866, 14 U. S. S. 46; May 31, 1870, 16 U. S. S. 141.

These acts, and perhaps others not enumerated, show very clearly that, when Congress desired a case to be tried on all the issues involved in it because one of those issues was to be controlled by the Constitution, laws,

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